Threats to African Penguins & Penguin Conservation

[Lisbeth]

African penguin litigation – draft settlement reached days before landmark case is heard in high court


Penguins at Boulders Beach, Cape Town. The Gauteng Division of the High Court in Pretoria. (Photos: Gallo Images / Daily Sun / Raymond Morare)

By Kristin Engel | 13 Mar 2025

A hard-fought settlement is within reach just days before the landmark African penguin litigation is set to be heard. After weeks of intense, round-the-clock negotiations over island closures, both sides finally found common ground, pending official signoff.
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It has been a hard and long road to get to this point with opposing parties negotiating proposals and counterproposals for a settlement agreement in the African penguin litigation for stronger protections to stop the decline of the African penguin and its imminent extinction by 2035.

The conservation organisation applicants and the fishing industry respondents could not find common ground for weeks on end. Now it appears that the parties have come to a preliminary agreement, pending official signoff, which could halt court action.

The legal battle was set to be heard in the Gauteng Division of the High Court in Pretoria from 18-20 March 2025, intended to protect the now critically endangered African penguin’s food source, sardine and anchovy, from competition with the fishing industry with more stringent island closures around foraging areas of African penguin breeding colonies.

Through the Biodiversity Law Centre, BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds have filed a lawsuit against the Minister of Forestry, Fisheries and the Environment and the pelagic fishing industry, arguing that stronger protections are urgently needed to stop the decline of the African penguin and its imminent extinction by 2035.

Read more: Delays behind, legal battle ahead: Key arguments to be presented in African penguin litigation

Read more: Court showdown looms in fight to protect critically endangered African penguin

Negotiations between the parties have been going on for weeks, during all hours of the night and weekend, with the teams exhausted as they tried to come to a settlement agreement that pleases all parties.

They finally got to a point where both sides felt they could live with a specific set of island closures around key African penguin foraging areas and could settle.

What is needed after this is for the minister to agree to the agreement between the applicants and industry, following that, a court order needs to be developed and signed by the parties – only then an agreement will exist.

Executive director of the Biodiversity Law Centre Kate Handley told Daily Maverick: “In principle, there has been agreement between the applicants and the fourth and fifth industry respondents. This initial agreement has been endorsed by the minister’s legal team … So, there is an agreement, in principle, in place.”

Handley said that this was “in principle”, because there are legal processes that need to be followed to give effect to the agreement. It needs to be incorporated into a draft court order, which then needs to be presented to the judge and handed down as an official court order. This will likely happen next week.

Avoiding a court battle

In August 2024, Daily Maverick reported that a settlement could be on the horizon in the African penguin lawsuit, with Forestry, Fisheries and Environment Minister Dion George stating that he didn’t see the point of lawyers fighting each other in court while the penguins head to extinction – “That makes no sense.”

Read more: African penguin lawsuit — Settlement talks ‘to prevent extinction’ under way

On Wednesday, a statement was issued by the Department of Forestry, Fisheries and the Environment titled “Minister Dion George Secures Historic Settlement To Protect Penguins.”

This agreement establishes critical island closures to protect South Africa’s penguin populations, including:

• The biggest win for the applicants in this settlement may be the agreement for St Croix Island, in Algoa Bay, which is of critical importance and will now have a new closure to protect foraging grounds for the African penguin colony. At least 1,543 African penguin breeding pairs were recorded here, of the less than the 10,000 breeding pairs which are left in the wild;

• Bird Island, also in Algoa Bay, was another big win, with a 20km closure to be implemented from the lighthouse. Bird Island is home to 1,650 breeding pairs, of the less than 10,000 breeding pairs which exist;

• Dassen Island on the West Coast is home to 1,806 African penguin breeding pairs and will maintain its interim closure as per current permit conditions;

• Robben Island in Cape Town has 1,007 African penguin breeding pairs, and now has a 20km closure, consistent with the Island Closure Experiment;

• Stony Point in Betty’s Bay will also have a new closure applicable to all fishing vessels, where 1,623 African penguin breeding pairs are located and forage; and

• Dyer Island in Gansbaai, with 1,069 African penguins breeding, will have the interim closure as reflected in current permit conditions.

The advocate teams are now giving their input on the draft order which was written by the applicants. Handley said they still have the court date on the 18th, although they have written to the judge to advise of what has happened between the parties.

Then the next step is for the judge to advise whether the parties need to appear in court on the 18th to hand the order up in person or whether this is something that will happen in the judge’s chambers with the advocates present.

“It’s been a long and dedicated process from both sides. Both sides, the industry respondents and the applicants, have worked incredibly hard to find each other and that is what has been achieved,” said Handley.

From the applicant’s perspective, they were very pleased with the outcome because it was going to secure much more robust closures for African fishing to protect African penguins’ feeding grounds.

The biggest challenge, according to Handley, was that everybody wants to be where the fish are. The industry wants to fish where the fish are, and the conservation groups want to protect where the fish are so that African penguins can access those fish.

Handley said: “Everybody wants a piece of the same pie and, in reaching agreement, the interests of both sides have to be taken into account.”

Effective closures

The closures, once the settlement agreement has been finalised and made an order of the court, would need to be incorporated into the permits of the sardine and anchovy fishers.

As soon as those changes to the permits are made, the court order will be effective.

Handley said that a lot of monitoring is going to need to be done by the Department of Forestry, Fisheries and the Environment in collaboration with the NGOs to assess the efficacy of the closures, but that they were confident that having these closures in place will mean some improvement in species numbers in the coming years.

“But that’s going to be something that needs to be monitored closely,” said Handley.

George added that the Department of Forestry, Fisheries and the Environment would work closely with all parties to ensure this “historic agreement” becomes an order of the court and will ensure the successful implementation of the agreed closures and will support efforts to monitor their impact on penguin populations.

The parties were surprised with the minister going public with the statement at this stage. Handley said it was a little concerning that this has happened in the way that it has, but in terms of the content of the statement, she confirmed that an in-principle agreement has been reached. DM

[Lisbeth]

CRITICALLY ENDANGERED

Inside the African penguin litigation — how fishing industry, conservation groups found common ground


A Save the African Penguin from Extinction protest at Boulders Beach in Simon’s Town on 18 March 2025. (Photo: Gallo Images / Brenton Geach)

By Kristin Engel | 19 Mar 2025

A landmark settlement agreement has been reached in the African penguin litigation after intense negotiations between conservation NGOs and the commercial fishing industry. Concessions were made by both parties, resulting in the specific closure of six key breeding colonies to commercial fishing.
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On Tuesday, 18 March, the Pretoria High Court issued an order making the settlement official between BirdLife South Africa (BLSA), the Southern African Foundation for the Conservation of Coastal Birds (Sanccob) – represented by the Biodiversity Law Centre – the South African Pelagic Fishing Industry Association (Sapfia) and the Eastern and Southern Cape Pelagic Association – endorsed by the Department of Forestry, Fisheries and the Environment (DFFE) and Minister Dion George.

The lawsuit was launched a year ago by the conservation NGOs against the minister and the pelagic fishing industry, arguing that stronger protections were urgently needed to stop the decline of the African penguin and its imminent extinction by 2035.

It was feared that without the correct delineations of no-take zones for the commercial sardine and anchovy fishery around six key African penguin breeding colonies overlapping the commercial fishery, the species would have no chance of survival – especially against other threats it faces.

African penguin numbers declined from 15,187 breeding pairs in 2018 to an estimated 8,750 at the end of 2023. In 2024, the species was moved from endangered to critically endangered on the International Union for Conservation of Nature Red List and is on track to be extinct in the wild by 2035.

The parties from both sides spoke to Daily Maverick about the details of this hard-fought settlement, hailed as an important step forward for African penguin conservation.


Protesters at a Save the African Penguin from Extinction demonstration at Boulders Beach in Simon’s Town on 18 March 2025. (Photo: Gallo Images / Brenton Geach)

Tackling the delineations regionally

The narrow issue of the settlement was the delineations of the fishing closures around the six breeding colonies. The monitoring and evaluation will be handled separately by a penguin working group, at the request of the minister.

The process for settlement talks was initiated a while ago, but it was only in the few weeks between the end of 2024 and the beginning of 2025 that the parties started intense discussions about delineations.

Eventually, they decided to go about it regionally, by tackling delineations per colony.

On the West Coast, this included Dassen Island and Robben Island. Then they tackled the South Coast, at Stony Point and Dyer Island, and the Eastern Cape, which was St Croix and Bird Island in Algoa Bay.

“There was a lot of back and forth between conservation and the fishing industry. It was certainly not a straightforward process, because there was so much at stake for both parties. But after many, many iterations we were very thankful to reach an agreement,” said Nicky Stander, head of conservation at Sanccob after court proceedings on Tuesday.

For African penguins, Stander said this gives them a fighting chance against threats leading to their extinction, and they will now have enough food in the vicinity of where they hunt for fish.

Kate Handley, executive director of the Biodiversity Law Centre, said: “It really was a difficult and long negotiation, with both sides trying their best to get the best for all the industry, for their constituents and for the conservation sector, for penguins.”

Read more: Delays behind, legal battle ahead: Key arguments to be presented in African penguin litigation

Read more: Court showdown looms in fight to protect critically endangered African penguin

With this order issued by the court, the DFFE has two weeks to amend the permit conditions applicable to commercial sardine and anchovy fishers (also covering redeye) for the agreed-upon closures.

The permit condition will then be renewed every January for the next 10 years, up to 2035, when scientists predict the African penguin will be extinct in the wild.


A peaceful Save the African Penguin from Extinction protest was held at Boulders Beach on 18 March 2025. The International Union for Conservation of Nature moved the African penguin from endangered to critically endangered, underscoring the species’ extremely high risk of extinction in the wild. (Photo: Gallo Images / Brenton Geach)


Protesters at Boulders Beach on 18 March 2025. (Photo: Gallo Images / Brenton Geach)

Key conservation wins in the agreement

The most important win for the applicants was Stony Point where they managed to secure a closure three times the size of the previous closure. Stander said this was the most contentious in discussions, because it was an important fishing ground for the commercial fishing industry as well.

The applicants also managed to get the 20km fishing closure around Robben Island and equally around Bird Island in the Eastern Cape.

“Those were really important wins for conservation. The interim closures remain [in place] for Dyer Island and for Dassen Island. Then there was a slight change of the closure for St Croix,” Stander said.

Stander said they had to concede on certain areas, but that the regional approach they took in the discussions was important.

In winning 20km around Robben Island they conceded on Dassen Island. Similarly, with the win at Stony Point they conceded on Dyer Island.

“So, from a regional representation point of view, we’re very satisfied with how the settlement was reached,” Stander added.

Tension between the conservation sector and the fishing industry in this matter has been raging since 2008, with arguments about the science by many conservation and industry scientists put forward in different working groups.


Penguins at Boulders Beach on 18 March 2025. (Photo: Gallo Images / Brenton Geach)

Consuming negotiations

“Many of us have invested so much of our professional careers to saving African penguins, and it means so much to us. We wanted to bring this over the line, so we went into negotiations with an open mind,” Stander said.

“But certainly when difficult decisions had to be made it was incredibly difficult, because we were not only making these decisions for Sanccob, BLSA and for the African penguins, we were making this decision for conservationists and people who conduct this work all over and representing conservation as a whole.”

Had they gone to court, there were risks for the applicants, the fishing industry and for the government. Thus, the parties believed that what was reached was the best outcome for all.

Dr Alistair McInnes, the seabird conservation programme manager at BLSA, said scientific and conservation practitioners have been advocating for more suitable closures to purse seine fishing around the six last large major colonies since 2019.

“It’s been a long road to get to this point. There have been many fora facilitated by DFFE between the conservation and fisheries stakeholders to try to find common ground around suitable closures for African penguins, but also minimising costs to the industry,” he said.

“We are quite happy that now there are improved closures… [Some of] the closures are now more than three times the extent of the ones that were in place, they’re much more reflective of where the birds actually go to fish, so they’re more likely to actually do the job they were initially intended to do.”

McInnes said there have been various settlement proposals, but from the conservation sector’s perspective they weren’t willing to compromise on anything that wasn’t defendable from a scientific perspective for African penguins.

One of the crucial things they were after was a good representation of penguin foraging areas in all three major regions – the West Coast, South Coast and the Eastern Cape.

“We weren’t able, up until this point, to get a reasonable offer from industry to get that representation that we needed in all three regions,” McInnes said.

He said it came as quite a surprise – they thought they would be going to court, but knew that they needed to hold their ground in terms of what was good for the penguins.

Fishing industry eager to move on

Sapfia and Eastern and Southern Cape Pelagic Association said a “middle-of-the-road compromise” position was agreed to, in which the extent of closures is about halfway between the interim closures that are currently in place and the area closures that the applicants were seeking in their court action.

In an interview with Daily Maverick after the court action on Tuesday, Sapfia chairperson Michael Copeland said the settlement was a relief in a way because this process had been going on since 2008, and even with the court action it didn’t seem like the end was in sight.

“We anticipated, irrespective of what transpired, if the court had to consider the papers that were put before them, we didn’t see that that was going to be the end of the matter. And under those circumstances, we, as the industry, were quite pleased that we could enter into, without prejudice, a settlement agreement… It was in the interests of all parties indefinitely, in the interests of the penguins,” Copeland said.

He said this should have happened some time ago.

“We are pleased that this is behind us. I think we’ve got some finality in this matter, and we are extremely pleased that the penguin working group can get going to do its work, because we believe that is where the big wins are going to be made in penguin conservation.”

He said the industry hoped that this settlement could be a turning point for more collaboration and working between the two sectors.

“Both parties had to make concessions. So the fishing industry had to live with increased areas, and the conservation sector had to live with less increased areas.”

The fishing industry has been participating in the island closure experiment since 2008, and Copeland said that during that process there have already been a number of reductions in vessels operating, and factories.

“I think, to a large extent, a lot of the pain in jobs probably has already occurred. What this does mean to smaller rights holders and to fishermen and to the workers in the factories is [that] it’s obviously going to affect them because what we’re talking about is a loss of catch, and so it’s a loss of hours worked in the factories, and for fishermen it’s a loss of direct income.”

‘We won the battle but not the war’

In terms of the trajectory of the penguin’s decline and the projected 2035 extinction date, Stander said this case and its outcomes were never going to be a silver bullet.

“This was just a very important conservation intervention that was required. But there’s still so much work to be done. Specifically, I’m really looking forward to seeing whether the South African government will enforce these fishing closures and put the monitoring and evaluation plan in place, which is obviously critical to seeing how beneficial these closures are,” Stander said.

Sanccob and BLSA said they would work with the DFFE to ensure these monitoring and evaluation plans are in place, and that they tackle all of the other pressures, as they have been doing over the years. These other threats include predation, the effects of climate change and oil pollution.

“All of those are still very significant threats, but we always maintain that food availability was the most pressing threat, and we really needed to have government to sort that out,” Stander said.

Handley added that it was important to note that competition with the small pelagic fishing industry was not the only threat to African penguins, but that it was one of the most significant threats.

“We have won the battle but not the war,” Handley said.

This was because the penguins were compromised in terms of their ability to catch prey and to nourish themselves. They then became much less resilient in the face of other threats such as oil spills, predation and ship-to-ship bunkering in Algoa Bay affecting their population decline.

Handley added that they would now rely on the DFFE and the minister to ensure full implementation of the court order and to follow through on taking all necessary steps to protect the African penguin.

On Tuesday, George said the DFFE was committed to overseeing the effective implementation of these closures and would collaborate with stakeholders to monitor their impact on penguin populations. DM